Magister Legum - LLM / The 1996 Constitution of the Republic of South Africa is the supreme law of the Republic and in enjoying this status it is prescribing the composition of the three different arms of government as well as each branch’s status within the new constitutional dispensation. Prior to this era of constitutional supremacy South Africa was subject to the principle of parliamentary sovereignty, an era where the courts could only challenge legislation on procedural grounds, but had no general power to declare legislation unconstitutional. The Constitution further provides for a separation of powers between these arms of government, and it has vested the judicial authority in the courts and conferred strong judicial review powers upon the Constitutional Court. The head of executive has recently argued that “the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”. The preceding quote is one of many statements and claims that forms part of a national debate on the nature and scope of the Constitutional Court’s powers in South Africa. The Constitutional Court has in recent years handed down judgments that were not favourable to the legislative and executive arms of the South African government. These judgments are evident in the existing and on-going tension between, the three arms of government.

Notion de philosophie politique discutée voire décriée, le principe de séparation des pouvoirs n’a pas connu l’effacement irrémédiable que paraissait lui promettre l’avènement de la Constitution-garantie des droits, dû au développement de la jurisprudence constitutionnelle. En effet, la constitutionnalisation du préambule de la Constitution de 1958, qui fut à l’origine de cet avènement, a conduit simultanément à faire du principe de la séparation des pouvoirs, sur le fondement de l’article 16 de la Déclaration de 1789, une norme de valeur constitutionnelle dont la jurisprudence abondante du Conseil constitutionnel a défini le sens et la portée, selon deux voies nettement distinctes. Appliquée aux rapports entre les seuls pouvoirs politiques, cette jurisprudence s’ordonne autour de la défense d’un dogme séparatiste, tendant à faire prévaloir du principe de séparation une conception presque toujours étanche. Appliquée aux rapports entre d’une part les pouvoirs politiques et d’autre part, le pouvoir juridictionnel, garant principal des droits et libertés, elle obéit en revanche à une démarche pragmatique consistant à faire varier l’interprétation du principe de séparation pour le mettre au service de la garantie des droits ou, à défaut, à juguler les effets parfois produits par ce principe au détriment des droits et libertés. / The principle of separation of powers is a controversial notion of political philosophy. Despite its expected decline due to the development of the constitutional jurisprudence allowing the emergence of the Constitution-guarantee of rights, separation of powers is still a key concept. Indeed, now that the Declaration of 1789 and its article 16 have constitutional rank, the principle of separation of powers is a constitutional norm. Using it, the Constitutional Council has defined its meaning and scope following two very different ways. In the first place, between the political powers, the constitutional jurisprudence isbased on the “separatist dogma”, which most of the times leads to a strict separation. In the second place, between the political and the jurisdictional powers, the principle of separation of powers is applied in a very pragmatic way. It is to say that the Council chooses to apply a strict or flexible separation depending on the most favorable outcome for the guarantee of rights and its main guardian, the judge.

Thesis advisor: Arthur Lewbel / In my dissertation I studied the political economy of economic development as well as the the urban wage premium, all using data from Brazil. In the first chapter, which is joint work with Carlos Varjao, we analyze the effect that increased political opposition in the city council has on corruption and public service provision at the local level. In the second chapter I study the sources of the high wage premium observed in cities, including firm sorting, firm and occupational matching, and compensating wage differentials. Finally, in the third chapter I study what happens to the provision of public education when a school teacher is elected to the city council (which actually occurs quite frequently). More detailed summaries of each chapter follow below. Chapter 1: In 'Political Opposition, Legislative Oversight, and the Performance of the Executive Branch', we study the effect that increased political opposition has on corruption and other measures of the mayor's performance in Brazil. The separation of powers between the executive and legislative branches is a cornerstone of democracy. This system of checks and balances, however, can be circumvented by partisan loyalties if legislators strategically avoid exerting oversight when their own party controls the executive branch. It is thus an empirical question whether the separation of powers prevents the abuse of power in practice. We answer this question by measuring the extent to which members of political opposition parties in a city council effectively check the mayor's performance in Brazil. We employ a regression discontinuity design to estimate the causal effect of an additional politically opposed legislator, and we find that political opposition increases oversight action and decreases corruption, with the effect fully concentrated on mayors facing reelection pressure. We trace the impact of oversight, via a reduction in healthcare spending irregularities, all the way to impacts on healthcare service delivery and health outcomes. Chapter 2: In 'Decomposing the Urban Wage Premium in Brazil: Firms, Matching, and Compensating Wage Differentials' I study the sources of the high wage premium observed in cities. In this chapter I used detailed employer-employee matched data from Brazil to understand 3 important elements of the urban wage premium: (1) the role of firms sorting into cities, (2) the role of firm and occupational matching in creating agglomeration economies, and (3) the role of compensating wage differentials. I first exploit identification from multi-city firms to show that positive selection of high-wage firms into larger cities accounts for 44% of what is often considered `agglomeration economies'. Then I show that improved firm and occupational matching together account for 87% of agglomeration effects. I then turn my attention to compensating wage differentials--- a possible explanation for the high-wage firms in cities. I estimate revealed-preference valuation of jobs, and show that jobs in cities in fact have better non-wage characteristics, and so high urban wages cannot be due to compensating wage differentials. This evidence together suggests that in Brazil, cities exist because they provide thick labor markets where high-wage firms and high-wage workers can go to find productive matches. Chapter 3: In 'Teachers in Politics: Teacher-Politicians, Gender, and the Representation of Public Education' I study what happens to public education in a city when a school teacher is elected to the city council, and I find that it depends on the gender of the teacher. Using a regression discontinuity design that exploits close elections, I find that when a female teacher is elected to the city council, the city hires both more teachers and more qualified teachers, and pays them more. Having a female teacher on the city council also increases the likelihood that the city's schools have necessary teaching resources, books, and financing, and possibly increases student test scores. No significant effect is found for male teachers elected to the city council. This difference may be due to different political career concerns for men versus women, a simple amplification of existing gender policy preference differences, or some mixture of the two. / Thesis (PhD) — Boston College, 2021. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Economics.

Made available in DSpace on 2016-03-15T19:35:21Z (GMT). No. of bitstreams: 1 Karina Bonetti Badawi.pdf: 800033 bytes, checksum: 7c3ff84ba02fd0bd99cf4281153b6989 (MD5) Previous issue date: 2014-06-06 / This study proposes a new structure of separation of powers in Brazil. The structure that develops finds support in the work "The New Separation of Powers" Bruce Ackerman, which develops a framework of separation of powers called 'limited parliamentarism'. The model presented in this work is the breakdown of the classical structure of the tripartite powers, inspired by Montesquieu, and opening for numerous other instances of control, beyond redistribution of existing functions. The work presents a proposal to amend the Federal Constitution to insert the new model of separation of powers. Finally, we analyze the validation of this new model in Brazil, through a constitutional amendment. The goal that we seek with this new model is the democratic legitimacy as an exercise in democracy, the efficiency of state action and the protection and expansion of Fundamental Rights. / Este presente estudo propõe uma nova estrutura da separação dos poderes no Brasil. A estrutura que se desenvolve encontra apoio na obra A Nova Separação dos Poderes de Bruce Ackerman, o qual desenvolve uma estrutura de separação dos poderes denominada de parlamentarismo limitado . O modelo apresentado neste trabalho faz a quebra da estrutura clássica da tripartição dos poderes, inspirada em Montesquieu, e a abertura para inúmeras outras instâncias de controle, além da redistribuição das funções já existentes. O trabalho apresenta uma proposta de alteração da Constituição Federal para inserção do novo modelo de separação dos poderes. E, por fim, analisa-se a validação deste novo modelo no Brasil, por meio de emenda constitucional. O objetivo que se busca com esse novo modelo é a legitimidade democrática como exercício de democracia, a eficiência da atuação do Estado e a proteção e a ampliação dos Direitos Fundamentais.

The beginning of the 1990s saw many African countries embarking on the process of drafting new constitutions as they abandoned independence constitutions. Most of the independence constitutions were perceived as constitutions without constitutionalism and they were generally blamed for failure of democracy and the rule of law in Africa. The study analyses the state of democracy and constitutionalism and the impact that colonialism had on the African continent. Apart from the spurt of new constitutions adopted, democracy is growing very slowly in most African states with widespread human rights violations and disregard for the rule of law and the principle of separation of powers, still holding the centre stage. Judicial independence is an important component of democracy in the modern state. The study therefore scrutinizes how the principle of judicial independence can be promoted and protected to enhance democracy. One important mechanism which plays a crucial role in safeguarding judicial independence is the way judicial officers are appointed. The study selects four countries – Swaziland, Kenya, Zimbabwe and South Africa and analyses how judicial officers are appointed in these countries in an effort to find an effective and optimal approach.The premise of the study is centred on the role of constitutionalism and the process of appointing judges as a means of promoting and safeguarding democracy in these selected countries. / Public, Constitutional, & International Law / LLM

The beginning of the 1990s saw many African countries embarking on the process of drafting new constitutions as they abandoned independence constitutions. Most of the independence constitutions were perceived as constitutions without constitutionalism and they were generally blamed for failure of democracy and the rule of law in Africa. The study analyses the state of democracy and constitutionalism and the impact that colonialism had on the African continent. Apart from the spurt of new constitutions adopted, democracy is growing very slowly in most African states with widespread human rights violations and disregard for the rule of law and the principle of separation of powers, still holding the centre stage. Judicial independence is an important component of democracy in the modern state. The study therefore scrutinizes how the principle of judicial independence can be promoted and protected to enhance democracy. One important mechanism which plays a crucial role in safeguarding judicial independence is the way judicial officers are appointed. The study selects four countries – Swaziland, Kenya, Zimbabwe and South Africa and analyses how judicial officers are appointed in these countries in an effort to find an effective and optimal approach.The premise of the study is centred on the role of constitutionalism and the process of appointing judges as a means of promoting and safeguarding democracy in these selected countries. / Public, Constitutional, and International Law / LLM

The judiciary in Kenya has been progressively viewed as subservient to the executive, an upholder of state power and a poor protector of citizens’ rights. The rejection of the judiciary as an independent and impartial arbiter of disputes was a major contributor to the post-election violence experienced in December 2007 which resulted in anarchy and massive loss of lives and property. This thesis contends that there is a contextually symbiotic link between separation of powers, judicial independence and the rule of law. While focusing on the relationship between the judiciary and the executive, the research highlights the dangers of failure to maintain the appropriate balance of power between the executive, judiciary and the legislature, its ramifications to judicial independence and the rule of law. By analysing secondary data and using Kenya as a case study, this relationship is chronologically traced from the pre-colonial, colonial, independence and post-independence periods. An examination of successive constitutions exposes gaps and weaknesses in constitutional provisions guaranteeing judicial independence. Instances of violation are discussed with examples as confirmation that such protection was minimal, weak and not respected in practice. A high degree of executive intrusion, influence and control was evident inter alia in appointments, removal, funding and administration. Cumulatively, these factors contributed to the erosion of personal and institutional independence leading to drastic loss of confidence. Opportunities in terms of implemented reforms, especially the newly promulgated Constitution of Kenya 2010 are scrutinised. The thesis concludes that even though complete independence from the executive cannot be achieved nor is it desirable, more robust constitutional protection of judicial independence, coupled with a high degree of autonomy can be a strong guardian against violation. New threats are discovered. Further research, constitutional amendments and use of non-legal initiatives are proposed as key for future judicial reform.

Sunset clauses are a commonly used statutory provision related to the temporary duration of various laws. Such clauses are scattered throughout the statute books. This thesis aims to shed light on the constitutional value of such clauses, in order to value them from the perspective of the separation of powers and the rule of law. We have an extant amount of literature on sunset clauses, especially regarding their utility in the United States. In the United Kingdom, we have a limited analysis with respect to specific fields, including emergency legislation. However, we lack a comprehensive analysis with regard to their constitutional value. This thesis’s analysis is conducted in three parts, separated into the historical, the positive, and the normative. All three parts of this thesis are interdependent, and the analysis of each subsequent part builds on the conclusion of its antecedent. The first part investigates the historical development of sunset clauses since the first Parliament in England. The positive analysis examines the contemporary utility of sunset clauses. Finally, the normative evaluation examines their interaction with several models of separation of powers as it values their impact on the rule of law. Depending on the separation of power model, such clauses play a role in the system of checks and balances. On the one hand, they impact the institutional relationship between the executive and legislative branches. On the other hand, they influence the interaction between the legislature and the courts. Although I acknowledge that their legislative use in limiting human rights diminishes the rule of law, they might have the exact opposite effect: on several occasions in the past, they were used to advance the rule of law, including the adoption of innovative legislation and the annulment of the death penalty. Indeed, this thesis attests to the constitutional value of sunset clauses.

Cette thèse entend démontrer par le recours à la comparaison que le principe de séparation des pouvoirs civils et militaires constitue un élément fondamental des Etats de tradition libérale. En droit, elle prend la forme d’incompatibilités. Dans un premier temps, suite aux expériences de confusion des pouvoirs civils et militaires cette séparation a pris la forme d’une incompatibilité entre le militaire et l’électeur. Dans un second temps, cette séparation a pris la forme d’une incompatibilité entre le militaire et le représentant. / This comparative study aims to demonstrate that the principle of separation of civil and military powers is a fundamental part of States with liberal tradition. In law it takes the form of incompatibilities. In law, it takes the form of incompatibilities. Initially, following the experiences of confusion of civil and military powers that separation has taken the shape of an incompatibility between the military and the voter. In a second step, this separation has taken the shape of a mismatch between the military and the representative.

Diploma Thesis Abstract - The President of the Russian Federation This diploma thesis was written during my study stay in the Russian Federation. When I started working on the thesis, the outside temperature was well below 20 degrees Celsius and, by the time I was finished, the temperatures reached over 30 degrees Celsius. The thesis is based exclusively on sources in Russian, which I could access in the library of the Faculty of Law of the Saint Petersburg State University. The aim was to address the concept of the head of a state in general and, subsequently, to define the basic status of the president of the Russian Federation (RF) from the viewpoint of constitutional laws. The contents of the thesis can be summarised as follows: The head of the state plays two roles in the Russian constitutional system. Firstly, it is the role of an official entrusted with the task of uniting the RF, co-ordinating the activities of individual public authorities, representing the united voice of Russia both on the international political arena and within the country, and determining the general course of the Russian policy. This part of the president's role is paramount and we can even say that, in the RF, it is rampant. It justifies the calls for the establishment of a separate branch within the separation of powers -...